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Criminal Appeal No.60/BWP of 1982, decided on 15th October, 1983.

‑‑‑S. 307‑‑Injured prosecution witness in a position to identify his assailant‑‑Such witness fully involving accused and co‑accused‑‑No foundation for substitution of accused for real culprit, laid down‑‑Injured prosecution witness having no serious, enmity with accused and standing test of cross‑examination‑‑Defence version not believable‑‑Trial Court, held, rightly relied upon testimony of sole injured prosecution witness‑ Conviction maintained.

‑‑‑S. 307‑‑Sentence‑‑Three eye‑witnesses refusing to support prosecution‑‑High Court feeling that parties had entered into compromise‑‑Accused having served out more than one year of his sentence‑‑Sentence of 6 years reduced to one already undergone‑ [Sentence].

K.A. Chauhan for Appellant.

M.A. Hamid for the State.

Date of hearing: 15th October, 1983.

This criminal appeal arises from the judgment of the learned Judicial Magistrate Section 30, Bahawalnagar whereby he on 31‑7‑1982 convicted Ghulam Haider under section 307, P.P.C. and sentenced him to six years R.I. and a fine of Rs.10,000 in default thereof to S.I. for two years.

2. The prosecution case in brief is that Ghulam Haider and Subey Khan acquitted co‑accused armed with hatchet and Sota respectively launched murderous assault on Ghulam Muhammad P.W.4 and caused seven injuries on his person. Out of these injuries two injuries found on the head were declared as grievous.

3. In order to prove its case the prosecution examined seven witnesses Muhammad Yousif P.W.2, Muhammad Bakhsh P.W.3, Ghulam Muhammad complainant P.W.4, Allah Bakhsh P.W.5 were produced give ocular account of the occurrence. It may be mentioned here that the three eye‑witnesses namely Muhammad Yousuf P.W.2, Muhammad Bakhsh P.W.3 and Allah Bakhsh P.W.5 had not supported the prosecution case and were declared hostile Ghulam Muhammad P.W.4, however, supported the prosecution case and stated that Ghulam Haider armed with hatchet and Subey Khan armed with Sota had opened attack and caused injured to him. P.W.6 Dr. Irshad Ahmad has stated that he found seven injuries on the person of Ghulam Muhammad and that two injuries found on his head were grievous. Statement of the other witnesses is more of less of formal nature.

3‑A. Learned counsel for the appellant has submitted that the prosecution has failed to prove its case against the appellant beyond reasonable doubts and that Ghulam Muhammad P.W.4 the injured is not a reliable witness.

4. I have considered the arguments advanced by the learned counsel with care. I find that Ghulam Muhammad P.W.4 who received injuries at the hand of the assailants was in a position to identify the assailants that he has fully involved the appellant and Subey Khan co‑accused; That Subey Khan has been acquitted on the main ground that he was sound innocent during the investigation and no foundation whatsoever for the substitution of the appellant for the real culprit has been laid that Ghulam Muhammad P.W.4 has no serious enmity with the appellant and that he has stood the test of the cross‑examination.

For what has been found, above I am of the opinion that the trial Court has rightly relied upon on the statement of Ghulam Muhammad P.W.4. The appellant when examined under section 342, Cr.P.C. had denied the incriminating circumstances. He stated that he was falsely involved by the plaintiff and others due to party friction. He produced Pir Shah and Mehram Shah in his defence. Their statements that Ghulam Muhammad had received injuries as result of fall from a tree cannot be believed in view of the nature and number of the injuries.

5. For all these reasons I am of the view that the trial Court has rightly recorded the conviction under section 307, P.P.C.

Coming to the question of sentence, my impression is that in fact the parties had entered into a compromise and it was for that reason that three witnesses had refused to support the prosecution case. Furthermore, the petitioner is in the jail since 31‑7‑1982 from B the date of his conviction and has served out more than one year of his sentence. In the circumstances I am inclined to reduce the sentence awarded to him and am of the opinion that the sentence of imprisonment already undergone and a fine of Rs.10,000 would meet the case in case the fine is not paid the petitioner would suffer further S.I. for two years. Half of the fine shall be paid to Ghulam Muhammad P.W.4, complainant, as compensation. With this modification the appeal is dismissed.

S. A. Sentence reduced.

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